Professionals with advanced degrees or people of exceptional ability in the sciences, arts, or business may avoid the labor certification requirement by proving that their work in the United States will be in the national interest. This legal provision is referred to as a National Interest Waiver (NIW) because it provides U.S. Citizenship & Immigration Services (USCIS) with the authority to waive the job offer and the labor certification requirement.
Proving National Interest
In the 1998 Administrative Appeals Office decision New York State Department of Transportation(NYSDOT), the USCIS adopted a strict test for determining what constitutes national interest for these purposes. Under NYSDOT, an NIW will be granted only when the following elements are proven:
- The foreign national is seeking employment in an area of substantial intrinsic merit;
- The benefit of the work will be national in scope, i.e., will not benefit only a local community; and
- The national interest will be adversely affected if a labor certification is required for the position.
This third element is confusing and difficult to establish. USCIS takes the position that protecting the U.S. workforce (which is the purpose of a labor certification) is itself a matter of national importance. Therefore, the benefit conferred by the foreign national’s employment must exceed the benefit provided by the protections of the labor certification process. In addition, an applicant for an NIW must show that he or she would not be able to provide the same national benefit if a labor certification were required.
An NIW may be requested either by an individual or by any person on the individual’s behalf (i.e. the individual’s U.S. employer). The request is made by filing Form I-140 and Form ETA-750A (in duplicate) with USCIS office having jurisdiction over the individual’s proposed place of employment. The petition must be accompanied by evidence that the foreign national seeking the NIW is a professional and holds an advanced degree, or is a person of exceptional ability in the sciences, arts, or business. The NIW application must also demonstrate that all three NYSDOT elements are met by the foreign national’s proposed employment. If USCIS agrees that the proposed employment will serve the national interest, the I-140 will be approved and may be used to obtain permanent residence.
Upon receipt of an approved I-140 immigrant petition, an individual may change to permanent residence status either by filing a Form I-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States.
- Foreign national provides firm with detailed resume, an individual statement regarding the national benefit that will be conferred by the proposed work, and a list of potential references for testimonial letters.
- Firm analyzes information to assess probability of approval of the NIW.
- Foreign national provides firm with copies of publications and all other supporting material.
- Firm works with individual’s references to draft testimonial letters supporting the contention that individual’s work is likely to provide a substantial national benefit.
- Firm drafts I-140 petition forms and letter of support for Company or foreign national’s review and signature.
- Firm consults with Company and foreign national to determine whether to file I-140 petition concurrently with I-485 application to adjust status.
- Firm files I-140 petition with USCIS office having jurisdiction over proposed place of employment.
- Foreign national uses approved I-140 to obtain permanent residence through either adjustment of status or consular processing.